Iron Workers District Council of Ontario v. PCL Constructors Canada Inc., 1998 CanLII 18298

[1998] OLRB REP. JULY/AUGUST 533

1998-97-JD Iron Workers District Council of Ontario and International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 721, Applicants v. PCL Constructors Canada Inc., AGS Contract Glazing Limited, and International Brotherhood of Painters and Allied Trades, Local 1819, Glaziers, Responding Parties v. The Architectural Glass and Metal Contractors Association, Intervenor

BEFORE: Lee Shouldice, Vice-Chair, and Board Members J. Knight and G. McMenemy

APPEARANCES: Gary Caroline, Frederica Wilson, Aaron Murphy and Tony Almeida for the applicants; Bruce Binning and Dale Heacock for PCL Constructors Canada Inc.; S.B.D. Wahl and D. Lynch for International Brotherhood of Painters and Allied Trades, Local 1819; Peter Straszynski and Francis Lee for AGS Contract Glazing Inc; Douglas Gilbert, Kline Holland and Barry Eon for The Architectural Glass and Metal Contractors Association.

DECISION OF THE BOARD; August 18, 1998

I. Introduction and Preliminary Matters

1. This is an application regarding a work assignment filed with the Board in accordance with section 99 of the Labour Relations Act, 1995 (hereinafter "the Act"). This proceeding was scheduled for an oral consultation before this panel of the Board on November 28, 1997 and May 29, 1998.

2. At the outset of the consultation, the Board heard a preliminary argument regarding the scope of the work in dispute. We also entertained the submissions of the parties on a preliminary issue raised by the applicants; namely, whether the Architectural Glass and Metal Contractors Association ought to be provided intervenor status in this proceeding.

3. As initially filed with the Board, this application defined the work in dispute as "the unloading, lifting, handling, aligning, fastening and installation of new windows in punched openings at the Cummer Lodge nursing home, 205 Cummer Avenue, Toronto, Ontario". Upon review of the responding parties' materials which were filed with the Board, the applicants became aware that curtain wall had also been installed at that same project. By way of letter dated November 6, .1997, counsel for the applicants requested that the work in dispute be redefined to encompass as well the unloading, handling, rigging and installation of curtain wall at the project. Counsel also clarified that the applicants claimed jurisdiction over the caulking and sealing work on the project, which it included in the concept of "installation".

4. We will not outline the full arguments of the parties on the preliminary matters in these reasons for decision. The applicants noted that the parties which had filed materials with the Board (particularly the International Brotherhood of Painters and Allied Trades, Local 1819 (hereinafter referred to as "the Glaziers")) had included in their briefs considerable documentation regarding the performance of curtain wall, and questioned the prejudice involved in permitting a broader definition of the work in dispute. The Glaziers submitted, through counsel, that the applicants (hereinafter referred to as "the lion Workers") had waited far too long before raising this proposed amendment with the Board, and that the nature of the arguments and the submissions before the Board would be affected by such an amendment. Counsel for the other parties (hereinafter referred to as "PCL", "AGS" and "Architectural Glass", as the case may be) adopted, to varying degrees, the argument made on behalf of the Glaziers.

5. After a brief recess, the Board provided the parties with the following decision:

First, there can be no dispute that the Architectural Glass and Metal Contractors Association is a proper party to this consultation, and we see no reason why it cannot make full submissions based upon the materials filed with the Board to date.

Secondly, with respect to the issue of the proper scope of the work in dispute, we are of the view that all of the work, including curtain wall, punched window openings, and the caulking of same, should be considered at one time. Having considered the argument of counsel, we are unconvinced that the merits of that work assignment dispute cannot be properly dealt with on the basis of the materials filed with the Board to date. Accordingly, we intend to proceed with this matter today, on the merits. Reasons for this decision will issue in conjunction with a decision on the merits.

6. We set out our reasons for this decision briefly. First, with respect to the participation of Architectural Glass, that entity is the designated Employer Bargaining Agency as defined in section 151 of the Act. It is a party to the ICI collective agreement with the Glaziers and could be directly affected by any decision of the Board in this consultation. Accordingly, Architectural Glass was a proper party to this proceeding and was granted intervenor status.

7. With regard to the issue of the proper scope of the work in dispute, it was evident that the parties had buttressed their materials regarding punched opening windows with evidence regarding performance of curtain wall work. Accordingly, there was no meaningful prejudice which accrued to any party if the consultation proceeded with a broader scope. The arguments raised by the Glaziers regarding what further evidence would have been filed with the Board had the work in dispute been described to include curtain wall at the outset were not persuasive. In the three week period between the time that the request for amendment was made and the consultation was convened, evidence of that nature could have been easily prepared by the Glaziers and provided to the parties and the Board, if it had any real probative value. It was not. There was a relatively minor amount of curtain wall work performed at the Cummer Lodge project, and it made very little sense to hive it off from the other window work for the purposes of this proceeding. Accordingly, we ruled as indicated above.

II. The Merits of the Work Assignment

(a) Background Facts

8. There does not appear to be a great deal of dispute amongst the parties regarding the background events leading to the work assignment dispute. It would appear that in early February, 1997, Mr. Kevin Santalucia, a business agent for the Iron Workers, was advised that PCL had obtained the general contract for the Cummer Lodge project. Shortly thereafter, the Iron Workers, through its counsel, wrote to PCL to remind PCL that it was bound to the Iron Workers' ICI collective agreement with the Ontario Erectors Association. Counsel also noted in this letter that PCL was not bound to the Glaziers' ICI collective agreement, and identified his understanding that the Iron Workers' ICI collective agreement covers the installation of both windows and curtain wall. The letter from counsel stated that, given PCL's lack of contractual obligations to the Glaziers, "we suggest that the window and curtain wall packages for [this project] be let to subcontractors which are also bound to the [Iron Workers' ICI collective agreement]".

9. Approximately one week later, Mr. Santalucia discovered that PCL intended to subcontract the work in dispute to AGS, a company which is not contractually bound to the Iron Workers but instead is bound to the Glaziers' through its ICI collective agreement with Architectural Glass. The Iron Workers' immediately filed a grievance, alleging that PCL had violated the subcontracting provision of the Iron Workers' ICI collective agreement by subcontracting work to an employer not in contractual relations with the Iron Workers. Shortly thereafter, Mr. Paul Schmalz, PCL's Vice President and District Manager, wrote to counsel for the Iron Workers and advised him that PCL would be tendering the window work "in accordance with normal industry practices". He went on to state that PCL would be prepared to invite both Iron Worker subcontractors and Glazier subcontractors to bid for the work.

10. The grievance filed by the Iron Workers was referred to the Board, pursuant to section 133 of the Act. Approximately two weeks later, counsel for the Glaziers contacted counsel for the Hon. Workers and advised that the Glaziers intended to intervene in the grievance proceeding. In the result, the Iron Workers indicated that it would file a jurisdictional dispute with respect to the work assignment at the Cummer Lodge project, which is the instant proceeding. The grievance referral was adjourned pending the disposition of this jurisdictional dispute application.

11. In fact, PCL did award the work in dispute to AGS. It would appear that invitations to bid were advertised in the Daily Commercial News and were forwarded to both Iron Worker subcontractors and Glazier subcontractors. Two bids were received by PCL. No Iron Worker subcontractor bid on the window work. Of the two bidders, only AGS bid in accordance with the specifications for the job. Accordingly, PCL subcontracted the window work to AGS.

(b) Decision

12. When determining a jurisdictional dispute complaint, the Board considers any and all factors relevant to the proper assignment of the work. As a general observation, the Board has historically given consideration to certain factors including the following:

(a) employer practice and preference;

(b) area practice;

(c) trade agreements;

(d) collective agreement obligations;

(e) trade union constitutions;

(f) skill, training and safety; and

(g) economy and efficiency.

In any particular case, one or more of these factors may be of special significance, and will be given greater weight than other factors. In this proceeding, the parties touched on each of the above factors during the course of argument.

13. In the circumstances of this proceeding, the factors of employer practice, area practice, and collective agreement obligations are inextricably intertwined. Although there was significant disagreement amongst the parties regarding the genesis of bargaining rights obtained by the Iron Workers with what was referred to as the "PCL group of companies" (a disagreement which we need not resolve for the purpose of this proceeding), there is no question that PCL is, by way of a voluntary recognition agreement dated February 8, 1996, bound to the Iron Workers' ICI collective agreement with the Ontario Erectors Association. PCL is not bound in any way to the Glaziers' ICI collective agreement. AGS, on the other hand, is bound to the Glaziers' ICI collective agreement, but is not bound to apply the terms of the Iron Workers' ICI collective agreement.

14. It is, at this stage, important to set out the statutory provision which underlies the Board's authority to entertain jurisdictional disputes such as that before this panel of the Board. Section 99 of the Act provides the Board with this authority. For the purposes of this proceeding, the wording of section 99(1)(b) of the Act is pertinent. It reads as follows:

99(1) This section applies when the Board receives a complaint,

b) that an employer was or is assigning work to persons in a particular trade union rather than to persons in another;

That is, the statute establishes that the Board has jurisdiction to hear a work assignment complaint when an "employer was or is assigning work". It is therefore necessary to identify, in each proceeding, the employer assigning the work. This is particularly critical in a work assignment complaint, because the Board considers "employer practice" to be a significant factor in resolving these disputes.

15. There is usually no dispute on the identity of the "employer" assigning work for the purposes of a work assignment complaint. Not so here. Both the Glaziers and the Iron Workers disagree on the identity of the entity which assigned the work in dispute. The Iron Workers assert that the "employer" for the purposes of section 99(1)(b) of the Act is PCL, which "assigned" the work by way of subcontract to AGS. The Glaziers, on the other hand, assert that the "employer" for the purposes of this proceeding is AGS, which actually assigned the work to its employees. The other parties support the position taken by the Glaziers on this point.

16. In our view, there can really be no dispute that, in this proceeding, the "employer" for the purposes of section 99(l)(b) of the Act is AGS. Four cases were put to the Board (two from each of the Iron Workers and the Glaziers) dealing with this question, containing greater or lesser analysis. By far the most persuasive decision is that of Napev Construction Ltd., [1980] OLRB Rep. Feb. 247. At that time, the jurisdictional dispute provisions of the Labour Relations Act (section 81(1)) read slightly differently, combining what is now section 99(1)(a) and 99(1)(b) of the Act. The differences in the statutory wording is not a meaningful factor. The question before the Board in Napev Construction Ltd. was whether a trade union's grievance against Napev or the subcontracting provision in the collective agreement between them constituted "a request of an employer by a trade union that work be assigned to its members". The Board made the following comments in its decision:

17. To begin our analysis, we note that while Napev might be described as an employer for the purposes of the agreement with Local 2, there is no evidence that Napev directly employs any bricklayers or masons at the subject site. It, of course, subcontracted this work to Venice. However, section 8 1(1) would appear to be referring to an employer who is directly performing "the particular work" because it describes this work as work the employer had initially assigned "to persons in another trade union". If Napev can be said to have assigned any work, it assigned masonry work to another employer - a subcontractor. The subcontractor (Venice) in turn directly assigned this work to persons in a trade union, i.e. members of Local 1. Thus, on a close reading of the subsection, the term employer is more reasonably referable to Venice than to Napev. The only way to avoid the implications of this interpretation would be to "look through" Venice and equate the subcontracting of the masonry work to Venice as being, in fact, an assignment of work by Napev to members of Local 1. However, this approach ignores the substantial history of interpretation accorded to the subsection and makes a difficult equation between the verbs "assign" and "subcontract". On this latter point, an assignment of work in industrial relations more usually describes the direct allocation of work by an employer to his employees or, at least, to persons in a particular trade union. And in the context of a jurisdictional dispute under section 81, the section contemplates that the Board might have to alter this assignment in order to resolve the conflict. On the other hand, the contractual relationship between Napev and Venice is usually described as a subcontract. But, if any doubt remains, legal precedent underpinning this subsection renders these initial impressions indisputable.

Continuing on at paragraph 18, the Board reaches its conclusion:

18. ... While the existence of subcontract clauses may be symptomatic of underlying jurisdictional conflict and anxiety, the Board's mandate for intervening in this aspect of labour relations is limited by the specific words employed in section 81(1). On the basis of this wording and for the reasons outlined above, it cannot be said that once a contract is let pursuant to a subcontract clause a trade union is inevitably requiring "an employer" to assign particular work to persons in a particular union. A subcontract clause in a collective agreement is a contractual arrangement between a trade union and general contractor limiting the range of subcontractors the general contractor may utiilze in the construction of a project. As the analysis above demonstrates, it cannot be said that the general contractor is the employer for the purposes of section 81(1) nor can it be said, at least in the abstract, that the existence of a subcontract clause constitutes a request to all subcontractors that work be assigned to members of a particular trade union.

19. We agree with the analysis of the Board respecting the identity of the "employer" which is outlined in the Napev Construction Ltd. decision. There is a substantive difference between "subcontracting" work and "assigning" work. In our circumstances, PCL clearly subcontracted the work in dispute to AGS. AGS, just as clearly, assigned the work to its employees, who were members of the Glaziers, in accordance with its contractual obligations. It cannot be said that PCL "assigned" any work, as defined by section 99 of the Act. There is no dispute here that PCL did not directly employ any employees to perform the work in dispute. In fact, there was a consensus amongst the parties that this particular niche of the construction industry is "a subcontractor's game".

20. The cases relied upon by the Iron Workers are not as persuasive as Napev Construction Ltd., and in fact are contrary to longstanding Board case authority (see, for example, Robertson Yates Corporation Limited, [1992] OLRB Rep. Apr. 507, at para. 12; Harold R. Stark Company Limited, [1982] OLRB Rep. Feb. 222, at para. 10; Scope Mechanical Contracting Limited, [1984] OLRB Rep. Feb. 379, at paras. 10 and 11; and Four Seasons Drywall Systems and Acoustics Limited, [1989] OLRB Rep. June 599, at para. 8). In both Allied Architectural Systems Ltd., [1995] OLRB Rep. Oct. 1243, and The McBride Group (Board File 0278-96-ID, unreported decision dated January 31, 1997), the decisions of the Board appear to equate a subcontracting situation with an assignment of work. In Allied Architectural Systems Ltd., for example, Allied was bound to collective agreements with both the Labourers' and the Iron Workers. Allied subcontracted certain work to a contractor bound only to the Labourers' collective agreement. In the work assignment proceeding brought by the Iron Workers, the Board notes, at paragraph 11, that:

By subcontracting the work in dispute to a contractor bound only to the Labourers' collective agreement Allied in effect assigned the work to the Labourers.

19. Likewise, in The McBride Group, also a jurisdictional dispute proceeding, McBride subcontracted certain masonry restoration work to Colonial, which in turn subcontracted the work to Pro-Tech Restoration. Pro-Tech was a signatory to a collective agreement with Local 598 of the Operative Plasterers (at the request of Colonial) but employed non-union workers at the project. Eventually, Colonial removed Pro-Tech from the job and undertook the work with its own employees, who were members of Local 598. Both Bricklayers' Local 7 and Labourers' Local 527 challenged the assignment of the masonry work. During the course of the consultation, the question of the identity of the entity assigning the work was raised. The Board made the following observations at paragraph 15 of the decision:

Local 598 suggested that the key factor in the matter was identifying "the employer" for the purposes of assessing employer past practice. In its submission, the employer was not McBride -with whom the Bricklayers have a collective agreement - but rather was McBride's subcontractor, Colonial - which has a collective agreement with Local 598 - since it actually employed the people who performed the work. We were not persuaded by the argument that the Bricklayers' claim amounted to an attempt at a "backdoor" expansion of its bargaining rights. In our view, the [sic] McBride had obtained the contract for the stone masonry restoration work and had ultimate control and direction of the work in dispute. Despite its collective agreement obligation to the Bricklayers', McBride chose to subcontract to a company that was not in contractual relations with the Bricklayers.

20. A few observations are in order regarding these cases. It is evident that the issue raised squarely by the instant proceeding was not specifically raised in Allied Architectural Systems Ltd.. It would appear that all of the parties assumed that a subcontract equated to an assignment of work. This substantially weakens the authoritativeness of that decision on the question in issue before this panel of the Board. Additionally, the use of the words "in effect" makes one question whether that panel of the Board intended the conclusion submitted by counsel for the Iron Workers. If that panel of the Board meant to suggest that a subcontract was an assignment of work for the purpose of section 99 of the Act, one wonders why the words "in effect" were written at all.

21. In The McBride Group decision, the issue before this panel of the Board was squarely before the panel of the Board assigned to that case. Again, though, it is not apparent from the reasons for decision of the Board that substantial argument was entertained on the issue, as no case authority was cited in support of the conclusions reached by the Board. It also appears from paragraph 12 of the decision that the reasons were provided for the benefit of the parties in what is described as a "summary" fashion. This may explain the lack of any supporting authority. In all of the circumstances, we do not give The McBride Group decision significant persuasive weight. We are satisfied that the preferable result in all of the circumstances is that reached by the Board in Napev Construction Ltd., and the other cases cited above in paragraph 18.

22. Having reached that conclusion, we turn to the various factors relevant to the issue before us. It has been observed by the Board before that employer and area practice have become dominant considerations in work assignment disputes (see, for example, Ecodyne Limited, [1997] OLRB Rep. Mar./Apr. 197, at para. 16). Here, consideration of both of those factors strongly suggest that the work in dispute was properly assigned to the Glaziers. The employer's historical practice has been to assign the work in dispute exclusively to members of the Glaziers. Furthermore, during the course of argument counsel for the Iron Workers conceded that 70% of the work in dispute in Board Area 8 is performed by members of the Glaziers. It would appear, then, that the vast majority of the work in dispute is performed by members of the Glaziers in Board Area 8. The performance of the work in dispute by PCL and/or the "PCL group of companies" is but a single element of the area practice evidence.

23. In Ecodyne Limited, cited above, the Board observed, at paragraph 15, that some of the general factors considered by the Board may well be of little or no assistance in any one case. In particular, the Board noted in that decision that, "in recent years, work jurisdictions asserted by construction trade unions in their constitutions and collective agreements have become so broad that these will often not favour the claim of any trade union ...". For the most part, this is the case here. It appears to us that the collective agreements relied upon by both the Glaziers and the Iron Workers contain language which support the jurisdictional claim made by each union. That being said, we also agree with the observation made by counsel for the Glaziers that the wording contained in the Glaziers' ICI collective agreement and its constitution more accurately captures the work in dispute and therefore that the Glaziers have a marginally stronger claim as a result.

24. Considering the other factors of significance, in our view the factors of skill, training and safety, and economy and efficiency are neutral. The materials filed with the Board do suggest that the Glaziers have a more comprehensive training program for its members than do the Iron Workers. However, there is no question that members of the Iron Workers quite capably perform the work in dispute. In the circumstances, then, there is no meaningful difference in skill, training or safety dependent upon which trade performs the work.

25. Turning to a consideration of trade agreements, there is no written trade agreement between the Glaziers and the Iron Workers which was relied upon by the parties. However, the parties both relied upon what was characterized in the materials filed with the Board (somewhat errantly, it appears) as an "informal understanding" between them to claim the work in dispute.

26. In essence, the Iron Workers state that an understanding has developed between the Glaziers and the Iron Workers with regard to subcontracts by general contractors that are either non-union or are bound to both the Iron Worker and Glazier ICI collective agreements. These contractors can subcontract the work to the lowest bidder. However, when an Iron Worker contractor obtains a contract to perform the work in dispute, that contractor will only use Iron Workers or other Iron Worker subcontractors to perform the work. The same principle is said to apply to Glazier contractors. The Glaziers (along with the other parties supporting the Glaziers) take issue with the Iron Workers' description of this "informal understanding". It states that the understanding establishes that general contractors may let the work in dispute to subcontractors in contractual relations with either the Iron Workers or the Glaziers, and that neither trade would challenge that assignment.

27. Work jurisdiction trade agreements, if utilized by the parties to those agreements to govern the assignment of work, may be determinative of a jurisdictional dispute (see, for example, Kora Mechanical Inc., [1992] OLRB Rep. June 740). Here, though, such a result is not appropriate. The materials before the Board do not reflect the "informal agreement" as defined by the Ironworkers. However, even if we were to conclude that the "informal understanding" between the parties was as described by the Iron Workers, such an understanding would be only one factor supporting the position of the Iron Workers, and not sufficiently persuasive to merit determinative status in favour of the Iron Workers in this proceeding.

28. Of significance in this proceeding is the fact that the Iron Workers do not have a collective bargaining relationship with AGS. It has been stated by the Board on numerous occasions that a trade union that has no applicable collective agreement with the employer which assigned the work will encounter a difficult time altering the work assignment. However, it has also been remarked that a trade union with a collective agreement with the employer assigning the work will not necessarily be successful in defending a claim for work brought by a trade union without a collective agreement (see, for example, Elecon Electrical Contractors Inc., [1995] OLRB Rep. May 645, Groff & Associates Ltd., [1994] OLRB Rep. July 846, and Ellis-Don Ltd., [1994] OLRB Rep. Sept. 1222). In Pigott Construction Limited, [1992] OLRB Rep. June 748, (commonly referred to as "Pigott #2"), the Board declared that the work in dispute in that application should have been assigned in accordance with a work jurisdiction agreement between two trades, which effectively awarded the work in dispute to members of a trade union which did not have a collective bargaining relationship with the assigning employer.

29. In Groff & Associates, cited above, the Board identified the circumstances under which a trade union without a collective agreement relationship would be successful in a work assignment dispute, at paragraph 20:

Although the lack of a collective bargaining relationship will not necessarily be fatal to a trade union's claim for work, the result in cases like Pigott #2 should not be taken to suggest either that the collective bargaining relationship factor is unimportant, or that the Board will necessarily direct that work be assigned to members of a craft trade union, even where the Board concludes that some or all of the work in dispute should have been assigned to the craft/trade in which members of that trade union are engaged. On the contrary, a trade union which complains about an assignment of work but has no collective agreement on which to base its claim will have to satisfy the Board that there are compelling labour relations reasons to interfere with the employer's assignment.

We agree with this observation. In the circumstances, there is no compelling labour relations reason to interfere with the assignment of work in dispute made by AGS.

30. This leads us to the final observation which we desire to make in this proceeding. During the course of reply argument, counsel for the Iron Workers very forcefully submitted that the effect of reaching a conclusion that the work in dispute was assigned by AGS as the 'employer", and that the work was properly assigned by AGS to members of the Glaziers, would be to enshrine "employer freedom of choice" as a legitimate factor for the determination of work assignments. That is, it was suggested that such a conclusion would permit employers to take into account commercial considerations as a factor in determining the assignment of work. Furthermore, it was submitted that another effect of such a result would be to entirely undercut the significance of the subcontracting provision contained in Article 2 of the Iron Workers' ICI collective agreement, and that bargaining rights held by a trade union with a general contractor would have no value or meaning.

31. We disagree with these submissions, and reject the conclusions which counsel for the Iron Workers submits would result from our finding that AGS is the "employer" for the purpose of section 99(1)(b) of the Act, and that the assignment made in the circumstances was appropriate. As was noted by the Board at paragraph 18 of Napev Construction Ltd., cited above, subcontracting clauses are important elements of trade union security and stability in the construction industry. They are a valuable tool utilized by the construction trades to ensure that work opportunities are maintained by those trades for their members.

32. What we fail to understand, however, is why it is that one must conclude that an adverse result in this proceeding for the Iron Workers sounds the death knell for subcontracting provisions in collective agreements. This proceeding had as its genesis an application brought under section 133 of the Act, alleging that PCL had violated the subcontracting provision contained in the Iron Workers' ICI collective agreement. It appears from the materials before the Board that when the Glaziers indicated that it would intervene in that proceeding, the Iron Workers agreed to adjourn the grievance arbitration in order to file this proceeding, which it has done.

33. We have now concluded that AGS is the "employer" for the purposes of section 99(1)(b) of the Act. We have reached no conclusions whatsoever about the merits of the outstanding proceeding pursuant to section 133 of the Act. It would appear from the comments of counsel at the oral consultation that PCL will assert at the section 133 proceeding that the failure of an Iron Worker subcontractor to bid on the work in dispute justified its subcontracting the work in dispute to AGS rather than to an Iron Worker subcontractor. Whether this is or is not a legitimate defence to the grievance will be determined by the panel of the Board hearing that proceeding.

34. What is clear to us is that nothing that we have stated in this proceeding has any determinative effect on the pursuance of the grievance arbitration currently in abeyance. PCL either violated the subcontracting provision contained in the Iron Workers' ICI collective agreement or it did not. If it did, then upon sufficient evidence establishing damages the Iron Workers will be compensated for its losses. If it did not, then the Iron Workers will not be entitled to any compensation. The merits of any work assignment made by AGS after PCL has subcontracted the work - properly or improperly - can have absolutely no bearing on the propriety of PCL's decision to subcontract the work in dispute in the first place. This panel of the Board has made no findings on that latter issue whatsoever.

35. It appears to us that this proceeding is, in essence, an attempt by the Iron Workers to utilize the subcontracting provision in its ICI collective agreement binding PCL as a means to elbow its way to the front of the line in an area of construction work which is and has traditionally been dominated by subcontractors bound to the Glaziers' ICI collective agreement. As the Board has previously stated (see Elecon Electrical Contractors Inc., cited above, at para. 14), the Board is not inclined to require an employer to subcontract work to another employer in a particular way, or at all. In Napev Construction Ltd., cited above, at paragraph 17, the Board noted that the Canada Labour Relations Board had previously indicated its concern that subcontracting clauses not be "unfairly used by aggressors in jurisdictional baffles". The Glaziers, and some of the parties aligned with the Glaziers in this proceeding, argued that this is what the Iron Workers were really attempting to do here. It appears to us that there may be some accuracy to that observation.

36. In the circumstances, we uphold the assignment of the work in dispute made by AGS, and dismiss this application.